Leg With Louie: A process you never knew you had, and you are about to lose

In 2006 the very unpopular administration of Governor Frank Murkowski approved a regulation allowing the dumping of water pollution into salmon spawning and rearing areas. This regulation was an extreme change to the rules protecting our salmon. Before it went into effect statewide, a review and certification by the Environmental Protection Agency were required. This regulation was so incredibly offensive to everyone besides the Murkowski Administration, the EPA took one look and condemned the reeking proposal to bureaucratic purgatory.

Enter the Trump Administration. In late 2018 without much fanfare, the Trump EPA  revived the pollution in salmon spawning habitat proposal and set it on the path toward final approval. If you take recent EPA history as a guide, it is clear that the Frank Murkowski’s pollution in salmon habitat rule will soon be the standard for Alaska rivers.

With this pollution rule poised to slither into Alaska, and with unprecedented climate change threatening our rivers, a person might ask why at such a time is their state Legislature considering ways to make it harder for the average Alaskan to protect waters of high ecological and recreational value. Dear friends, this is precisely what is occurring.

HB 138 was brought up Monday in House Resources and will be heard again on Friday. This bill, like a similar bill in the Senate (SB 51) deals with the process for Alaskans to nominate waters of high ecological value for special protections under a provision of the Federal Clean Water Act. These high-value waters are called Tier III. HB 138 seeks to remove the ability of the Department of Environmental Conservation to accept, process, and consider the merit of Tier III water nominations based on science, and instead places the Tier III process in the hands of the legislature, requiring that any nomination for special protection must pass into statute through legislation.

HB 138 would create the highest bar possible for a citizen to exercise their legal right to protect water in Alaska. It would give committee chairs in the House and Senate the ability to kill a nomination by burying a Tier III nomination bill in committee. HB 138 would provide industrial, business and municipal interests – adept at working the levers of power in the legislature – an upper hand in water protection debates. It would codify a practice in Alaska that has proven in numerous other states to result in zero waters designated for Tier III protections.

DEC has the ability and the legal authority right now to establish a process for Tier III water nominations that would satisfy the requirement of the Clean Water Act. The agency should move forward in good faith, instead of its status quo deferment and equivocation.

Numerous Tribal entities have already submitted nominations for water protections in response to threats posed by different mining projects in their regions. A scarcity of trust exists in Alaska that large industrial projects will ever be held accountable in the normal permitting process. With the Trump EPA about to authorize a regulation allowing wastewater pollution in spawning areas, who can fault anyone for lacking trust?

Contact the House Resource Committee and tell them to hold HB 138 in committee. Legislative approval of Tier III water is a dead-end disguised as a process. It is time for DEC to administratively create a clear and fair process for citizens to nominate waters for increased protection.

Louie Flora
Government Affairs Director

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